|9-15.100||General Principles Related to Obtaining Fugitives from Abroad|
|9-15.200||Procedures For Requesting Extradition From Abroad|
|9-15.210||Role of the Office of International Affairs in Extraditon Matters|
|9-15.220||Determination of Extraditability|
|9-15.230||Request for Provisional Arrest|
|9-15.240||Documents Required in Support of Request for Extradition|
|9-15.250||Procedure After Assembling Documents|
|9-15.300||Procedure in the Foreign Country|
|9-15.400||Return of the Fugitive|
|9-15.500||Post Extradition Considerations—Limitations on Further Prosecution|
|9-15.600||Alternatives To Extradition|
|9-15.610||Deportations, Expulsions, or Other Lawful Methods of Return|
|9-15.635||Interpol Red Notices|
|9-15.640||Revocation of U.S. Passports|
|9-15.700||Foreign Extradition and Provisional Arrest Requests|
|9-15.800||Plea Agreements and Related Matters—Prohibition|
|9-15.900||Costs Relating to Extraditions|
9-15.100 - Definition and General Principles
International extradition is the formal process by which a person found in one country is surrendered to another country for trial or punishment. The process is regulated by treaty and conducted between the Federal Government of the United States and the government of a foreign country. It differs considerably from interstate rendition, commonly referred to as interstate extradition, mandated by the Constitution, Art. 4, Sec. 2.
Generally under U. S. law (18 U.S.C. § 3184), extradition may be granted only pursuant to a treaty. However, some countries grant extradition without a treaty, and of those that do, most require an offer of reciprocity. Further, 18 U.S.C. 3181 and 3184 permit the United States to extradite, without regard to the existence of a treaty, persons (other than citizens, nationals or permanent residents of the United States), who have committed crimes of violence against nationals of the United States in foreign countries. A list of countries with which the United States has an extradition treaty relationship can be found in the Federal Criminal Code and Rules, following 18 U.S.C. § 3181, but consult the Criminal Division's Office of International Affairs (OIA) to verify the accuracy of the information.
Because the law of extradition varies from country to country and is subject to foreign policy considerations, prosecutors must consult OIA for advice on any matter relating to extradition before taking any action in such a case, especially before contacting any foreign official.
If the fugitive is not subject to extradition, other steps may be available to return him or her to the United States or to restrict his or her ability to live and travel overseas. See USAM 9-15.600 et seq.
If a fugitive is apprehended only after a long delay, a prosecutor may have to litigate a motion alleging a constitutional speedy trial violation if extradition has not been sought or the Government has not been actively pursuing other steps to return the fugitive to the United States. All decisions to pursue or not to pursue extradition or other measures to obtain custody of the fugitive should be documented to prepare for any eventual speedy trial motion.
9-15.200 - Procedures For Requesting Extradition From Abroad
Prosecutors who intend to seek the extradition from abroad of an individual to stand trial, to be sentenced, or to serve a sentence in the United States must contact the Criminal Division’s Office of International Affairs at (202) 514-0000.
9-15.210 - Role of the Office of International Affairs
The Criminal Division's Office of International Affairs (OIA) provides information and advice to Federal and State prosecutors about the procedure for requesting extradition from abroad. OIA also advises and provides support to Federal prosecutors handling foreign extradition requests for fugitives found in the United States.
Every formal request for international extradition based on Federal criminal charges must be reviewed and approved by OIA. At the request of the Department of State, formal requests based on State charges are also reviewed and approved by OIA before submission to the Department of State.
Acting either directly or through the Department of State, OIA initiates all requests for provisional arrest of fugitives pursuant to extradition treaties. Neither prosecutors nor agents are permitted to contact their foreign counterparts to request the arrest of a fugitive for extradition. Unauthorized requests cause serious diplomatic difficulties and may subject the requester to financial liability or other sanctions.
Every extradition treaty is negotiated separately, and each contains different provisions. Experience with one treaty is not a guide to all others. Therefore, after reviewing this section of the United States Attorneys' Manual, the first step in any extradition case should be to contact OIA. Attorneys in OIA will advise prosecutors about the potential for extradition in a given case and the steps to be followed.
OIA attorneys are subject-matter experts on extradition, and OIA is responsible for ensuring that the government’s position in such cases remains consistent. Federal prosecutors must consult with OIA regarding issues raised by a fugitive after return to the United States regarding his or her extradition.
9-15.220 - Determination of Extraditability
When speaking with the OIA attorney, prosecutors must be prepared to discuss, among other issues, the following factors:
A) Location: The country in which the fugitive is believed to be located.
B) Citizenship: The fugitive’s citizenship.
C) Offense(s) and salient facts: The offense(s) with which the fugitive has been charged or of which he or she has been convicted, along with the facts of the case in brief.
D) Costs: OIA will advise prosecutors regarding the costs associated with seeking extradition, including translation, express mail services, transportation and, if necessary, the costs of legal representation abroad. See USAM 9-15.900.
9-15.230 - Request for Provisional Arrest
Every extradition treaty to which the United States is a party requires a formal request for extradition, supported by appropriate documents. Because the time involved in preparing a formal request can be lengthy, most treaties allow for the provisional arrest of fugitives in urgent cases. Once the United States requests provisional arrest pursuant to the treaty, the fugitive may be arrested and detained (or, in some countries, released on bail) following the issuance of an order of arrest by the foreign authorities. Thereafter, the United States must submit a formal request for extradition, supported by all necessary documents, duly certified, authenticated and, if necessary, translated into the language of the country where the fugitive was arrested, within a specified time (from 30 days to three months, depending on the treaty). See USAM 9-15.240. Failure to follow through on an extradition request by submitting the requisite documents after a provisional arrest has been made will result in release of the fugitive, strains on diplomatic relations, and possible liability for the prosecutor.
The Criminal Division’s Office of International Affairs (OIA) determines whether the facts of the case meet the requirement of urgency under the terms of the applicable treaty. If they do, OIA requests provisional arrest; if not, the prosecutor assembles the documents for a formal request for extradition. The latter method is favored when the defendant is unlikely to flee because the time pressures generated by a request for provisional arrest may result in errors that can damage the case. If provisional arrest is necessary because of the risk of flight, the prosecutor should complete the form for requesting provisional arrest and forward it, along with a copy of the charging document and arrest warrant, to OIA by email. State prosecutors who request provisional arrest must also certify that they will submit the necessary documents on time and will cover all expenses, including the costs of translation and transportation by U. S. Marshals.
Prosecutors should complete a form requesting provisional arrest (available from OIA) in any case in which it appears that provisional arrest may be necessary. Once it is completed, it may be emailed directly to the OIA attorney or team responsible for the country in which the fugitive has been found or is believed to be located. A copy of the charging document, arrest warrant, and any other necessary documents to support the provisional arrest request to that country should be forwarded to OIA.
The form was created with both federal and state cases in mind. Thus, Assistant United States Attorneys are free to share the form with state and local prosecutors working on extradition cases. State prosecutors should email it to the OIA attorney who covers the relevant country.
[cited in USAM 9-15.700]
9-15.240 - Documents Required in Support of Request for Extradition
The request for extradition is made by diplomatic note prepared by the Department of State and transmitted to the foreign government through diplomatic channels. The documents specified in the treaty must accompany the extradition request. The Office of International Affairs (OIA) attorney will advise the prosecutor of the documentary requirements and provide exemplars, but it is the responsibility of the prosecutor to prepare and assemble the documents. The OIA attorney will review and approve the draft documents. Once the documents are finalized, following consultation with OIA, the prosecutor forwards the original and an OIA-specified number of copies to OIA in time for the documents to be translated, assembled, authenticated, and sent through the Department of State to the foreign government within any specified deadline.
Although variations exist, extradition requests generally are composed of:
- An affidavit from the prosecutor explaining the facts of the case and the charged offenses.
- Copies of the statutes alleged to have been violated and the statute of limitations.
- If the fugitive has not been prosecuted, certified copies of the arrest warrant and complaint or indictment.
- Evidence, which may need to be in the form of witness affidavits, reports or documentary evidence, or summaries thereof, establishing that the crime was committed, including sufficient evidence (i.e., photograph, fingerprints, and affidavit of identifying witness) to establish the defendant's identity.
- If the fugitive has been convicted, a certified copy of the order of judgment and committal establishing the conviction, and an affidavit (i) stating that the sentence was not served or was only partially served, (ii) specifying the amount of time remaining to be served, and (iii) providing evidence concerning identity.
Prosecutors should be aware that while there are few workable defenses to extradition, appeals and delays are common. Fugitives may be able to contest extradition on the basis of minor inconsistencies resulting from clerical or typographical errors. Although it may be possible to remedy these alleged defects, that process takes time. Therefore, pay careful attention to detail in preparing the documents.
[cited in USAM 9-15.230]
9-15.250 - Procedure After Assembling Documents
After assembling the documents required in support of extradition, the prosecutor should review them carefully to ensure that all names, dates, and charges mentioned in the affidavit and accompanying exhibits are consistent, and then forward the documents to OIA for review. Prosecutors should not execute affidavits, nor have witnesses do so, until the OIA attorney who covers the country approves the drafts.
Once the drafts have been approved by OIA, the prosecutor should forward the original(s) and an OIA-specified number of copies of the entire package to OIA. OIA can submit the package for translation on behalf of the prosecutor. Translations can take three weeks to complete, even for common languages. The cost of translating the extradition package will be billed to the U.S. Attorney’s Office or State prosecutor’s office requesting extradition. See USAM 9-15.900. OIA secures the required certifications on the original extradition documents and transmits it to the Department of State.
9-15.300 - Procedure in the Foreign Country
The Department of State will send the extradition documents and the translation, if any, to the U.S. Embassy in the foreign country, which will present them under cover of a diplomatic note formally requesting extradition to the appropriate agency of the foreign government, usually the foreign ministry. The request and supporting documents are then forwarded to the foreign court or other body responsible for determining whether the requirements of the treaty and the country's domestic law have been met.
In general, the foreign government's decision on the extradition request is based on the request itself and any evidence presented by the fugitive. Because the U.S. prosecutor will not have the opportunity to appear before the foreign court, the written submission, particularly the prosecutor's affidavit, must be as persuasive as possible. This is essential when the charges are based on statutes unique to U. S. law, such as RICO or CCE.
Though factual defenses to extradition are limited, the fugitive may delay a decision through procedural challenges. The determination of extraditability is often subject to review or appeal. Prediction of the time required to return an individual to the United States is difficult and depends on the circumstances of the individual case and the practice of the foreign country involved.
9-15.400 - Return of the Fugitive
Once the foreign authorities notify the Criminal Division’s Office of International Affairs (OIA) or the U.S. Embassy that the fugitive is ready to be surrendered, OIA will inform the prosecutor and arrange with the appropriate law enforcement agency, most often the U. S. Marshals Service, for agents to escort the fugitive to the United States. U. S. Marshals provide the escort even in a State case. However, in some cases arrangements are made for State or other federal law enforcement agents to accompany the U.S. Marshals or conduct the escort themselves. If the fugitive is a foreign national, OIA will ask the DHS to authorize Significant Public Benefit Parole to permit the foreign national to enter the country. If the fugitive is a U.S. citizen, a valid U.S. travel document will be required for the fugitive’s travel to the United States. The State Department is responsible for issuing U.S. travel documents, including passports for U.S. citizens. OIA can provide AUSAs with the appropriate points of contact at the State Department.
9-15.500 - Post Extradition Considerations—Limitations on Further Prosecution
Every extradition treaty limits extradition to certain offenses. As a corollary, all extradition treaties restrict prosecution or punishment of the fugitive to the offense for which extradition was granted unless (1) an offense was committed after the fugitive's extradition or (2) the fugitive remains in the jurisdiction that requested extradition after expiration of a reasonable time (generally specified in the extradition treaty itself) following acquittal or completion of his or her punishment. This limitation is referred to as the Rule of Specialty. Federal prosecutors who wish to proceed against an extradited person on charges other than those for which extradition was granted must contact the Office of International Affairs (OIA) for guidance regarding the availability of a waiver of the Rule by the sending State.
Frequently, defendants who have been extradited to the United States attempt to dismiss or limit the government's case against them by invoking the Rule of Specialty. There is a split in the courts on whether the defendant has standing to raise specialty: some courts hold that only a party to the Treaty (i.e., the sending State) may complain about an alleged violation of the specialty provision, other courts allow the defendant to raise the issue on his or her own behalf, and still other courts take a middle position and allow the defendant to raise the issue if it is likely that the sending State would complain as well. Whenever a defendant raises a specialty claim, the prosecutor should contact OIA for assistance in responding.
OIA attorneys are subject-matter experts on extradition, and OIA is responsible for ensuring that the government’s position in such cases remains consistent. Federal prosecutors should consult with OIA regarding issues raised by a fugitive after return to the United States regarding his or her extradition.
9-15.600 - Alternatives To Extradition
A fugitive may not be subject to extradition for any number of reasons, if he or she is a national of the country of refuge and that country does not extradite its nationals, the crime is not an extraditable offense, the statute of limitations has run in the foreign country, or the fugitive has been prosecuted in the country of refuge or in another country for the same conduct for which extradition is requested.
There may be alternative methods available to secure the return of the fugitive or to limit his or her ability to live or travel overseas. OIA will advise the prosecutor concerning the availability of these methods. These alternative methods are discussed in USAM 9-15.610- 650.
[cited in USAM 9-15.225]
9-15.610 - Deportations, Expulsions, or Other Lawful Methods of Return
If the fugitive is not a national or lawful resident of the country in which he or she is located, the Criminal Division’s Office of International Affairs (OIA), through the Department of State or other channels, may ask that country to deport, expel, or otherwise effectuate the lawful return of the fugitive to the United States.
In United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Supreme Court held that a court has jurisdiction to try a criminal defendant even if the defendant was abducted from a foreign country against his or her will by United States agents. Though this decision reaffirmed the long-standing proposition that personal jurisdiction is not affected by claims of abuse in the process by which the defendant is brought before the court, see Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952), it sparked concerns about potential violations of foreign sovereignty, territorial integrity, and criminal law.
Due to the sensitivity of abducting defendants from a foreign country, prosecutors may not take steps to secure custody over persons outside the United States (by government agents or the use of private persons, like bounty hunters or private investigators) by means of Alvarez-Machain type returns without advance approval by the Department of Justice. Prosecutors must consult with OIA before they undertake any such operation. If a prosecutor anticipates that a defendant may raise a claim that his return was illegal, the prosecutor must consult with OIA before such return.
Fugitives deported to the United States or otherwise legally returned without a formal order of extradition may claim that they were returned illegally to the United States. The courts generally dispose of those arguments under the Ker-Frisbie doctrine.
[cited in USAM 9-15.600]
9-15.630 - Lures
A lure involves using a subterfuge to entice a criminal defendant to leave a foreign country so that he or she can be arrested in the United States, in international waters or airspace, or in a third country for subsequent extradition, expulsion, or deportation to the United States. Lures can be complicated schemes or they can be as simple as inviting a fugitive by telephone to a party in the United States.
Some countries will not extradite a person to the United States if the person's presence in that country was obtained through the use of a lure or other ruse. In addition, some countries may view a lure of a person from its territory as an infringement on its sovereignty or criminal law. Consequently, a prosecutor must consult with the Office of International Affairs (OIA) and secure approval from the Criminal Division before undertaking a lure to the United States or a third country. Prosecutors contemplating a lure should consult with OIA as early as possible. If OIA concurs with the lure proposal, OIA will recommend that a Deputy Assistant Attorney General (DAAG) in the Criminal Division approve the lure. Lure approval authority resides with the DAAG.
[updated April 2018]
9-15.635 - Interpol Red Notices
An Interpol Red Notice is an international “lookout” and is the closest instrument to an international arrest warrant in use today. Please be aware that if a fugitive is arrested pursuant to a Red Notice, the prosecutor's office is obligated to do whatever work is required to produce the necessary extradition documents within the time limits prescribed by the controlling extradition treaty or, in the absence of a treaty, the arresting country’s domestic law, whenever and wherever the fugitive is arrested. Further, the prosecutor's office is obliged to pay the expenses pursuant to the controlling treaty.
Interpol Red Notices are useful when the fugitive's location or countries to which he or she may travel, are unknown. Red Notices may be broadly distributed or tailored specifically to countries to which it is believed the fugitive will travel. For additional information about Interpol Red Notices, see www.interpol.int//INTERPOL-expertise/Notices.
Because many countries will arrest a fugitive based solely on a Red Notice, it is the responsibility of the prosecutor to inform Interpol if a Red Notice should be withdrawn.
[updated April 2018]
9-15.640 - Revocation of U.S. Passports
The Department of State may revoke the passport of a U.S. citizen who is the subject of an outstanding Federal or State warrant. Revocation of a U.S. passport can result in loss of the fugitive's lawful residence status in a foreign country, which may lead to his or her deportation.
[updated April 2018]
9-15.650 - Foreign Prosecution
If the fugitive has taken refuge in the country of which he or she is a national, and is thereby not extraditable, it may be possible to ask that country to prosecute the individual for the crime that was committed in the United States. This can be an expensive and time consuming process and in some countries domestic prosecution is limited to certain specified offenses. In addition, a request for domestic prosecution in a particular case may conflict with U.S. law enforcement efforts to change the "non-extradition of nationals" law or policy in the foreign country. Whether this option is available or appropriate should be discussed with OIA.
[cited in USAM 9-15.600]
9-15.700 - Foreign Extradition and Provisional Arrest Requests
Foreign requests for extradition of fugitives located in the United States are ordinarily submitted by the embassy of the country making the request to the Department of State, which reviews and forwards them to the Criminal Division's Office of International Affairs (OIA). Such may seek the fugitive’s provisional arrest for purposes of extradition or may seek extradition and be fully supported by all documents required under the applicable treaty. (Under more contemporary extradition treaties, requests for provisional arrest may be transmitted directly to the Department of Justice if the treaty permits. See USAM 9-15.230 for an explanation of provisional arrest.)
The Department of State works with OIA to determine compliance with the treaty requirements. The Department of State will separately verify in a transmission to OIA that there is a treaty in force between the United States and the country making the request, that the crime or crimes are extraditable offenses under the terms of the treaty, and that the supporting documents are properly certified.
When OIA receives a foreign extradition request, in summary, the following occurs:
- OIA reviews the request, and, if it is sufficient and appropriate, forwards it to the U.S. Attorney’s Office in the district where the fugitive is located.
- An Assistant United States Attorney will be assigned to the case and will seek a warrant for the fugitive’s arrest. Once arrested, the fugitive is brought before the magistrate judge or the district judge, who informs the fugitive of the reasons for the arrest and the nature of the proceedings. The prosecutor, when appearing in court in support of the request for extradition, is representing the United States in fulfilling its obligations under the extradition treaty.
- The government opposes bond in extradition cases.
- Neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply. Fed. R. Evid. 1101(d)(3), Fed. R. Crim. P. 1(a)(5)(A). Both the extradition statute, 18 U.S.C.§ 3184, and the local rules of most federal courts provide that a magistrate judge may conduct extradition proceedings.
- A hearing under 18 U.S.C. § 3184 is scheduled to determine whether the fugitive is extraditable. When scheduling the extradition hearing in cases of provisional arrest, prosecutors should ensure that courts are cognizant of the time allotted in the treaty for submission of the documents in support of the request. Prosecutors should also take into account the transmission of the documents from the Department of State to the court and counsel. If the court finds the fugitive to be extraditable, it certifies the extradition and sends the record to the Secretary of State, who decides whether to surrender the fugitive. In some cases a fugitive may waive the extradition process or consent to extradition.
- Although the certification of extradition following the hearing is not appealable (by either the fugitive or the government), the fugitive may petition for a writ of habeas corpus under 28 U.S.C. § 2241 as soon as the certification is issued. The district court's decision on the writ of habeas corpus is subject to appeal, and the extradition may be stayed if the court so orders.
- Prosecutors must notify OIA immediately if a habeas petition is filed.
- Following the decision of the Secretary of State (or his or her designees) to issue the surrender warrant, OIA notifies the foreign government and arranges for the transfer of the fugitive to the custody of the agents of the country requesting extradition.
OIA attorneys are subject-matter experts on extradition, and OIA is responsible for ensuring that the government’s position in such cases remains consistent. Therefore, prosecutors must consult with OIA regarding both pleadings and significant legal issues arising in extradition litigation.
[updated April 2018]
9-15.800 - Plea Agreements and Related Matters—Prohibition
Persons who are cooperating with a prosecutor may try to include a "no extradition" clause in their plea agreements. Such agreements, whether formal or informal, may be given effect by the courts. If a foreign country subsequently requests the person's extradition, the United States faces the unpleasant dilemma of breaching its solemn word either to the person involved or to its treaty partner. Petition of Geisser, 627 F.2d 745 (5th Cir. 1980), describes the enormous practical problems of resolving such a dilemma. Related matters involve agreements with potential witnesses to prevent or delay their removal.
Prosecutors may not agree either formally or informally to prevent or delay extradition removal unless they submit a written request for authorization, and receive an express written approval from the Assistant Attorney General, Criminal Division. Requests should be submitted to the Office of International Affairs (OIA) after endorsement by the head of the section or office responsible for supervising the case.
Similarly, prosecutors may not agree, either formally or informally, absolutely not to share with a foreign government evidence provided by an individual or entity without prior approval from OIA. (Prosecutors may, however, without seeking OIA approval, agree with individuals or entities that they will share such evidence only under the same conditions that bind U.S. prosecutors, as long as any such agreement does not discriminate against foreign authorities.) OIA will work with prosecutors to ensure that production of evidence and information developed in U.S. cases is consistent with U.S. law enforcement interests as well as treaty obligations. In appropriate cases, OIA can invoke provisions of the treaty to ensure that foreign authorities use the evidence produced consistent with any conditions or limitations that may apply to disclosure or use of the evidence.
9-15.900 - Costs Relating to Extraditions
In general, translation costs associated with the extradition of fugitives from abroad are borne by the requesting USAO or state prosecutor’s office. In extraditions in federal cases, the U.S. Marshals Service generally pays the transportation and lodging costs associated with transporting a prisoner back to the U.S. Translation costs associated with a foreign government’s request for extradition are generally borne by the foreign government. Prosecutors should contact OIA for additional information in specific cases.
[updated April 2018]